promising tribal–state court relations · first, these promising strategies reflect strong and...

Promising Strategies:

Tribal–State Court Relations

March 2013

(Updated August 2013)

Promising Strategies:

Tribal–State Court Relations

March 2013

(Updated August 2013)

A product of the

Tribal Law and Policy Institute

8235 Santa Monica Blvd, Suite 211

West Hollywood, CA 96046

www.tlpi.org

www.WalkingOnCommonGround.org

Telephone: (323) 650‐5467

Fax: (323) 650‐8149

This project was supported by Grant No. 2009‐IC‐BX‐K004 awarded by the Bureau of Justice Assistance. The Bureau

of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice

Statistics, the National Institute of Justice, the Office of Juvenile and Delinquency Prevention, the Office for Victims

of Crime, and the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking. Points of

view or opinions in this document are those of the author and do not necessarily represent the official position or

policies of the U.S. Department of Justice.

Primary Authors:

Carole Goldberg, UCLA Native Nations Law and Policy Center

Duane Champagne, Turtle Mountain Chippewa, UCLA Native Nations Law and Policy Center

Contributors:

Demelza Champagne, Turtle Mountain Chippewa, UCLA Native Nations Law and Policy Center

Jerry Gardner, Cherokee, Executive Director, Tribal Law and Policy Institute

Heather Valdez Singleton, Program Director, Tribal Law and Policy Institute

Maureen White Eagle, Metis, Legal Consultant, Tribal Law and Policy Institute

Editorial Assistance:

Terrilena Dodson, Navajo, Program Assistant, Tribal Law and Policy Institute

Naomi Miguel, Tohono O’odham, Program Assistant, Tribal Law and Policy Institute

Table of Contents

Introduction ..............................................................................................................................i

1. National Center for State Courts and National American Indian Court

Judges Association

Extending Project Passport .................................................................................................1

2. State of Arizona and Arizona Tribal Courts

Recognition and Enforcement of Tribal Court Involuntary

Commitment Orders ...........................................................................................................7

3. Leech Lake Band of Ojibwe Tribal Court and Minnesota’s Ninth Judicial

District Court for Cass and Itasca Counties

Joint Powers Agreement .....................................................................................................13

4. Michigan State Bar and Michigan Tribes

Michigan Bar Journal’s Annual Directory............................................................................19

5. Idaho State/Tribal Court Forum and Idaho State Judiciary

Idaho Tribal Court Benchbook ............................................................................................23

6. Arizona Supreme Court and Arizona Tribal Courts

Rule Providing State Recognition of Tribal Court Judgments .............................................27

7. Ninth District of Wisconsin and Five Signatory Tribes

Tribal/State Protocol for the Judicial Allocation

of Jurisdiction (AKA Teague Protocol) ................................................................................31

8. Yurok Tribal Court and Counties of Del Norte and Humboldt, California

Coordinated Adult and Juvenile Probation .........................................................................35

9. New York Federal‐State–Tribal Courts Forum

Listening Conference ..........................................................................................................41

10. New Mexico Tribal–State Judicial Consortium and Cross‐Cultural Exchanges ................45

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Introduction

Tribal courts and state courts interact across an array of issues, including child welfare, cross‐

jurisdictional enforcement of domestic violence orders of protection, and civil commitments. In

Public Law 2801 (PL 280) jurisdictions, the concurrent jurisdiction of state and tribal courts over

criminal prosecutions and civil actions arising in Indian Country creates even more interactions

and complications.

Tensions and misunderstandings have been common features of tribal and state court relations

in the past, sometimes erupting in jurisdictional conflicts. The different cultures, legal

traditions, political systems, histories, and economic positions of state and tribal courts have

contributed to these challenges. Since the early 1990s, however, initiatives by judges’

organizations within both judicial systems have focused on an agenda of greater mutual

understanding and cooperative action. Individual judges and court systems have also taken up

the challenge, devising innovative programs that sidestep conflict in the interests of common

goals such as greater community safety and child protection. State court leadership and court

improvement organizations, such as the Conference of Chief Justices and the National Center

for State Courts, and funding agencies, such as the Bureau of Justice Assistance (BJA) in the U.S.

Department of Justice, have supported their undertakings.

This publication spotlights some of the most successful strategies within these initiatives. The

authors hope is that other tribes and states seeking to negotiate complicated relationships will

discover new options for solutions and find inspiring stories of collaboration within this

publication.

Selection Criteria and Methods The 10 programs featured in this publication were selected according to the following criteria:

INNOVATIVE: The programs are distinctive and involve innovative processes that appear to

present promising solutions to everyday challenges affecting Indian Country justice. The

programs contain a coherent strategy or vision that promises to improve a significant aspect

of justice relations.

REPLICABLE: The programs can be replicated or adapted in other tribal communities, their

1 PL 280 is a law that Congress passed in 1953 that gives certain named states criminal and civil jurisdiction on reservations and

withdraws most of the federal government’s responsibility for criminal jurisdiction in Indian Country. PL 280 also allowed other

states to opt into this jurisdictional arrangement, although since 1968 the states have only been able to do so with the affected

tribes’ consent. PL 280 did not eliminate any tribal jurisdiction over criminal or civil matters. States that are covered by PL 280,

either because they were named in the original act or subsequently opted in, can ask to be removed from PL 280 jurisdiction, a

process known as retrocession. Several states, such as New York and Maine, have jurisdictional arrangements that are very

similar to PL 280, but those arrangements were established by separate statutes.

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approaches can be used in other settings, and the level of investment needed to achieve

similar outcomes and sustain the programs is not insurmountable.

SUSTAINABLE: The programs can be sustained when external funding sources are expended

and when the programs are not dependent upon any one person for their continued

success.

CULTURALLY COMPATIBLE: The programs, as situated within a broader justice system, are

in accord with the current beliefs, understandings, values, and future goals of the

community.

COMMUNITY COMPONENT OF SERVICES: The programs are strengthening the relationship

of the Indian person to his or her community. The programs are well received and have

support from the surrounding community and tribal government.

GOVERNMENT OR NONPROFIT OPERATION: The programs operate within the tribal

nations’ governments or operate as nonprofit organizations.

RESPECT FOR AND ENHANCEMENT OF TRIBAL AUTHORITY: The programs demonstrate

respect for the jurisdiction of native nations and states and promote tribal administration of

justice in tribal territory.

FAIRNESS: The programs uphold non‐arbitrary, just, impartial, and nondiscriminatory

treatment of all persons.

INTERGOVERNMENTAL COOPERATION: The programs achieve benefits of coordinated,

consensual, and mutually respectful relations between tribal and nontribal justice agencies.

MANAGEMENT EFFECTIVENESS: Once program goals are established, the programs are

carried out so that goals will be achieved (e.g., appropriate rules, lines of responsibility,

personnel selection, communication, and allocation of resources).

In addition, when looking at the group of promising strategies that was selected, the following

criteria to exam the group as a whole were used:

CULTURAL DIVERSITY: The programs include a variety of different cultural backgrounds.

Each program has unique cultural aspects and traditions.

GEOGRAPHIC DIVERSITY: The selected tribal programs represent a variety of different

locations and jurisdictional circumstances within the United States.

With these criteria in mind, government publications, law review and newspaper articles,

award programs such as Harvard University’s Honoring Nations, and web resources were

reviewed to determine the most appropriate programs. Program contacts were identified, and

interviews were conducted with leaders and key participants for each program.

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Common Themes These 10 Promising Strategies come from PL 280 or similar states (California, Minnesota, New

York, and Wisconsin), non‐PL 280 states (Arizona, New Mexico, and Michigan), and one state

with partial PL 280 jurisdiction (Idaho). They address topics as diverse as domestic violence, civil

commitment, driving while intoxicated (DWI) cases, and contract disputes. Nonetheless, certain

common features do help explain their effectiveness in achieving good tribal–state court

relations.

First, these Promising Strategies reflect strong and persistent leadership from state and tribal

judiciaries, often leading to the institutionalization of ongoing relations. Thus, for example, the

New Mexico Tribal–State Judicial Consortium eventually sought recognition as a formal

committee of the state judiciary, which made it possible for tribal court participants to be

reimbursed for their travel to meetings. Such regularized encounters between tribal and state

court judges, through committees, consortia, or joint judicial associations such as the one

developed in Wisconsin, have helped build understanding and trust and have often been the

precondition for cooperative initiatives leading to successful outcomes.

Second, these Promising Strategies typically follow from sustained educational efforts, some of

which provide more general knowledge about respective court systems and communities,

others targeted at more specific challenges identified through joint discussions. These

educational efforts have often resulted in heightened awareness of and respect for tribal

authority and cultures, leading to increased receptivity to cooperative endeavors. Educational

institutions, federal granting agencies, and national technical assistance organizations often

have been deployed strategically to supply materials and training in a way that makes all

participants more receptive to the other’s experience and perspective. For example, the New

York State Judicial Institute, the Tribal Judicial Institute at the University of North Dakota, and

Syracuse University’s Center for Indigenous Law, Governance, and Citizenship have all played

important roles in the development of programs supporting New York’s Federal‐State–Tribal

Courts and Indian Na ons Jus ce Forum. Some of the Promising Strategies discussed in this

publication are actually supplying this educational information to a broad audience on an

ongoing basis, including the Michigan Bar Journal’s directory of tribal courts and the Idaho

Tribal Court Benchbook.

Third, progress has most often been achieved when both sides have put jurisdictional conflicts

to the margin, agreeing to disagree, and have focused on common goals. In Minnesota, for

example, the Leech Lake Band and two counties looked past the history of disagreements over

state jurisdiction under PL 280 and worked together to reduce recidivism by tribal members

who were driving under the influence of drugs or alcohol. Project Passport, a nationwide

initiative, draws support from the common desire in tribal and state judiciaries to protect

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vulnerable family members from domestic violence. Diversion, shared jurisdiction, and jointly

agreed‐upon protocols are among the ways of minimizing jurisdictional friction without

surrendering strongly held positions. In some instances, state or federal court decisions

addressing these conflicts—and acknowledging the importance of tribal courts—have preceded

the development of the Promising Strategy, as in the case of involuntary commitment in

Arizona or the Teague Protocol in Wisconsin. Although these decisions may strengthen the

position of tribal judiciaries, they are often insufficient to address ongoing community

challenges without the next step of cooperative tribal–state action. For that, the jurisdictional

conflicts must often be removed from the focus of discussion.

Fourth, not only are these Promising Strategies relatively low in cost, they may actually reduce

long‐term costs by avoiding duplicative litigation (the Teague Protocol in Wisconsin) and

reducing the number of repeat offenders (the Leech Lake/Cass and Itasca Counties joint

jurisdictional arrangements). By directing cases to the most suitable forum (Yurok Tribal Court

programs with Del Norte and Humboldt Counties) and preventing law enforcement errors

(Project Passport), these programs enhance the effectiveness of justice systems as a whole.

Conclusion

In these Promising Strategies, litigation and confrontation between tribal and state courts have

given way to enhanced understanding and cooperative action. Through networks of

relationships and innovative programs, they have knit together tribal and state justice systems

while respecting their differences. Through the ongoing institutionalization of dialogue and

creative responses to common concerns, they hold the promise of more innovative and

constructive joint endeavors.

Note on this Publication

The organization of the 10 Promising Strategy sites in this publication is no indication of a

ranking or any other such ordering. There are many promising strategies throughout Indian

Country in addition to those listed here, and this listing is in no way presented as exhaustive.

Many of the sites highlighted here build upon the successes of previous efforts in Indian

Country. One of the goals of this publication is to highlight relatively recent efforts and not to

give an historical account of the past efforts. Sites highlighted in this publication were selected

based on the authors’ research and knowledge, with input from BJA tribal technical assistance

project partners, including the Tribal Judicial Institute at the University of North Dakota, School

of Law; Fox Valley Technical College; and the National Tribal Judicial Center at the National

Judicial College. In addition, the criteria used to select sites were reviewed and vetted through

BJA partners.

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This publication is part of a larger project funded by BJA focusing on collaborations between

tribal–state‐federal partners. In addition to this publication, the Tribal Law and Policy Institute

(TLPI) has developed a companion document titled, Promising Strategies: Public Law 280.

Under this grant, TLPI has also launched a significantly enhanced and updated Walking On

Common Ground web site (www.WalkingOnCommonGround.org ). This site provides resources

for promoting and facilitating tribal–state‐federal collaborations, including an interactive map

with cooperative agreements searchable by topic. It also provides electronic versions of this

promising strategy publication, the PL 280 publication, and additional promising collaborative

strategy publications to come in the near future.

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Na onal Center for State Courts and Na onal American Indian Court Judges Associa on

1

1. National Center for State Courts and National American Indian Court Judges Association

Extending Project Passport

Founded: 2003–4 (NCSC‐led effort); 1999–2000 (original Passport effort)

Service area: National

Population: All Native American victims of domestic violence

Source of funding: Office of Violence Against Women, U.S. Department of Justice, and

implementing state and tribal jurisdictions

Web site: www.ncsc.org/

www.walkingoncommonground.org/files/Project%20Passport%20Model%20Template.pdf

Contact: Denise Dancy

Research Associate and Project Passport Director

National Center for State Courts

300 Newport Avenue

Williamsburg, VA 23185

(757) 259‐1593

[email protected]


2

Program Description

Project Passport is a response to the fact that domestic violence is mobile, following survivors

across tribal and state boundaries. Securing a domestic violence order of protection from a

court in one jurisdiction does not necessarily ensure the order will be recognized or enforced if

the victim travels, works, goes to school, or moves to another jurisdiction—especially if the

police in that new jurisdiction are not comfortable acting upon the original order because it is

unfamiliar to them. The Full Faith and Credit provision of the Violence Against Women Act

(VAWA), 18 U.S.C. § 2265(a), makes it a federal requirement for states and tribes to recognize

and enforce one another’s valid protection orders as if they were issued from their own court.

Courts and law enforcement agencies have not always carried out this mandate. Cross‐

jurisdictional challenges to the enforcement of protection orders can include a lack of access to

protection order registries, a lack of awareness of the federal requirement, turnover in

personnel, and conflicts in policies. Project Passport encourages the adoption of a recognizable

first page (with standardized, common elements and format), known as the Passport Model

Template First Page, for domestic violence orders of protection across jurisdictions. This

standardization facilitates broader recognition and enforcement of orders of protection across

jurisdictions. Through greater consistency in the issuance and enforcement of orders of

protection, the safety net for battered women is strengthened, regardless of where they live or

where the protection order was issued.

Project Passport began as a regional effort led by the State of Kentucky with its seven

surrounding states. Through multidisciplinary collaboration and consensus, that group

originated the Passport Model Template First Page and integrated the template into their

jurisdictions’ orders of protection. Subsequently, Extending Project Passport has expanded to

other regions. The first such effort, the Southeastern Expansion Effort to Passport, was led by

Alabama with seven of its neighboring states and tribes. The goal of Extending Project Passport

is to build upon the earlier success of the original Project Passport effort and to bring this

cooperative tribal–state court endeavor to other parts of the country. Through a series of

regional meetings, Extending Project Passport has introduced the model template to additional

states and tribes.

The Passport Model Template First Page presents commonly agreed‐upon data elements in a

standardized format. By making the essential data on an order of protection readily available

and easily recognizable, courts can be more confident that a “foreign protection order” (i.e., a

protection order issued in another jurisdiction outside of the enforcing jurisdiction) is authentic,

valid, and enforceable, and that the presenting parties at the point of enforcement are properly

identified. Major elements of the case appear on the first page of the protection order in an

easily recognized format, including the identity of the respondent, relationship of the parties to


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the order, expiration date of the order, and weapon information. Extending Project Passport

also encourages the exchange of protection order data by promoting the use of established

national electronic information exchange models and standards to facilitate an environment in

which data can easily be exchanged between various court case management systems, justice

system agencies, protection order registries, and the National Crime Information Center

Protection Order File.

By 2011, nearly 35 states and tribes in more than a dozen states have adopted the recognizable

first page promoted through Project Passport.2 Additional states and tribes are exploring its

adoption. Project Passport staff and partners have provided technical assistance to individual

tribal and state courts interested in implementing the Passport Model Template First Page into

their orders of protection.

Cultural Compatibility

Extending Project Passport promotes a recognizable first page for state and tribal domestic

violence protection orders that does not derive from any particular jurisdiction or tribal culture.

Because the Passport first page is a template, it has standardized features and formatting but

can be modified to individual jurisdictions. This flexibility allows tribal orders to retain

important elements unique to their individual courts, cultures, and codes. Culturally specific

information can be integrated into the form and on subsequent pages of the order. Tribes

incorporating a Passport‐modeled first page into their orders of protection have not reported

that the form diminishes the tribe’s cultural uniqueness or sovereignty. Participating

jurisdictions have indicated that the form increases the likelihood that a tribal court order will

be enforced outside of tribal territory, in essence extending the influence of the underlying

tribal culture that informs the tribal justice system and the orders issued by it.

Enhancement of Tribal Authority

Although the federal VAWA mandates mutual recognition and enforcement of state and tribal

court domestic violence orders of protection, individual state and tribal jurisdictions are

responsible for establishing mechanisms that ensure recognition and enforcement. Extending

Project Passport enhances the likelihood that cross‐jurisdictional recognition and enforcement

will occur, especially for tribal court orders. Unfamiliarity with a tribal court order format can

lead to inconsistent enforcement by state and other tribal courts and police who are uncertain

about the tribe’s justice system or the validity of its orders. The Passport Model Template First

2 For a detailed description of New Mexico’s adoption process, see

http://www.nmcourts.gov/tsconsortium/docs/Initiatives/Project_Passport/Passport_Additional_Background_Materials.pdf


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Page can help reduce enforcement concerns without jeopardizing tribal sovereignty. With the

Model Template First Page, state and tribal court orders appear similar in format and

communicate similar critical information; however the proceedings leading up to the order and

the order’s unique terms and conditions are controlled by the specific culture and processes of

the tribe.

Intergovernmental Cooperation Extending Project Passport is a multidisciplinary collaborative

partnership of national, tribal, and state organizations. The

National Center for State Courts and the National American

Indian Court Judges Association (NAICJA) represent state and

tribal court systems, respectively. In 2005, NAICJA adopted a

formal resolution announcing its support for the program and

encouraging “all of its members and all Tribal Courts in the

United States to adopt the principles of Project Passport and

participate in all training and education programs offered by

the National Center for State Courts.” The project’s regional

meetings and tribal–state regional forums have facilitated

communication, cooperation, and collaboration between

tribal and state courts and law enforcement agencies.

Examples include the exchange of state and tribal points of

contacts, coordinated publication of tribal and state court

codes, coordinated community outreach and provision of

victim services, and facilitated access to protection order data

and registries. The establishment of tribal–state liaisons, new

formal tribal–state forums, joint response protocols, and

cross‐deputization agreements between jurisdictions has also

been explored by tribal and state partners.

Fairness The common data elements and format designated by Project

Passport were developed to confirm facial validity and

facilitate proper identification of the individuals (respondents

particularly) covered by domestic violence orders of protection. Standardized features help

clearly communicate important information, limiting the possibility of erroneous enforcement

or lack of enforcement. This information includes the nature of the order, its expiration date,

identifying information about the issuing court and the parties to the order, and whether the

“What we know from jurisdictions is

that Project Passport has benefitted the

coordination between states and tribes

around issues of domestic violence; it

has helped strengthen and expand

sovereignty; and it has enhanced

recognition of tribal court orders by the

state jurisdiction. . . . Project Passport is

about endeavoring to build a

mechanism which helps strengthen and

broaden the safety‐net for community

members. The work done around this,

by its very nature, has helped

strengthen communications, strengthen

responses, and ultimately strengthen

the enforcement of protection orders

[through use of the Project Passport

template] to help protect lives.”

—Denise O. Dancy,

Research Associate and Project

Passport Director,

National Center for State Courts

“Everyone dials 911 when they’re in

trouble; it doesn’t matter where they

are. . . . You want to take away concerns

about the validity of an order. You want

[law enforcement officers] to focus on

protecting the individual.”

— Chief Judge Thomas W. Weissmuller,

Mashantucket Pequot Tribal Court


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order satisfies full faith and credit requirements related to jurisdiction and due process (e.g.,

notice to respondent and opportunity to be heard).

Keys to Success

Judicial leadership and broad stakeholder support have been crucial for tribal and state courts’

adoption of Project Passport. Leaders from state and tribal judiciaries have encouraged and

actively facilitated dialogue across systems and various disciplines regarding their different

needs and how to address them. Of critical importance, NAICJA lent its support to and has been

actively involved in the initiative. Finally, joint training and education for law enforcement and

court staff have contributed to the success of extending Project Passport, along with the

attendant growth of communication among tribal and state officials. State officials, in

particular, have grown in understanding of the differences between tribal and state courts,

recognizing that tribal courts do not function similarly to state courts along some dimensions.

Tribal and state participants have come to recognize and appreciate that despite distinctions

that may exist across jurisdictions and courts, they share the very important goals of protecting

the safety of women, children, and families and the law enforcement officers whose duty it is to

respond and protect them.


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State of Arizona and Arizona Tribes

7

2. State of Arizona and Arizona Tribes

Recognition and Enforcement of Tribal Court Involuntary Commitment Orders

Founded: 1992 (enactment); more frequently used

since 2009

Service Area: Arizona

Population: All federally recognized tribes in Arizona

Sources of Funding: Intertribal Council of Arizona,

Arizona Office of the Attorney General, Arizona State

Hospital, Arizona Department of Health

Services/Department of Behavioral Health Services, and

Regional Behavioral Health Authorities

Web site:

www.azdhs.gov/bhs/TribalCtInvCommitment.htm

Contact: Lydia Hubbard‐Pourier Tribal Contract Administrator

Arizona Department of Health Services

150 North 18th Avenue

Phoenix, AZ 85007

(602) 364‐4755

Lydia.Hubbard‐[email protected]

Program Description

In 1992, the State of Arizona enacted Arizona Revised Statutes (A.R.S.) § 12‐136, providing that

any involuntary commitment order of an Arizona tribal court that is filed in state court will be

recognized and enforced by the courts of the state as if it had been entered by another state

court. The state recognition process is not a rehearing of the facts or findings of the tribal court.

All that is required for enforcement is that the tribal court order includes certain findings and

information, as set forth in Arizona’s Rules of Procedure for Enforcement of Tribal Court

Involuntary Commitment Orders, which is available at

www.azcourts.gov/portals/93/handouts/tribal_court_involuntary_order.pdf (forms included).

A.R.S. § 12‐136 requires giving notice to the state’s attorney general of the filing of the tribal

commitment order and gives the attorney general five days to appear responding to the state

court domestication proceeding. Enforcement of a tribal order for involuntary commitment to

Catherine Plumb, Assistant A orney General, State

of Arizona ‐2010. Assistant A orney General for the

Arizona State Hospital, member and founder of

Involuntary Commitment Work Group.

Lydia Hubbard‐Pourier, BSN, MPH, Arizona

Department of Health Services, Division of

Behavioral Health Services, Bureau of Compliance,

Tribal Contract Administrator, member and co‐

founder of Involuntary Commitment Work Group.


8

treatment includes admission to the Arizona State Hospital for those Indians residing on

reservations. Any patient committed to a state mental health treatment facility under this law

is made subject to the jurisdiction of the state. The tribal court that issued the original

commitment order is given 10 days’ notice of the discharge of the patient, and any necessary

outpatient follow‐up and transportation of the patient back to the tribe’s territory must be

arranged through an intergovernmental agreement between the tribe and the state’s

Department of Health Services. The process that occurs is presented in the following flowchart:

Arizona enacted this law because tribal governments are sovereign and have sole jurisdiction

over tribal members on reservations in non‐PL 280 states. As a consequence, state involuntary

commitment proceedings could not be brought against tribal members.3 Although tribal courts

do have jurisdiction to enter civil commitment orders for on‐reservation tribal members, tribes

typically lack the facilities needed for such commitments and cannot directly order individuals

into state facilities. There are 22 federally recognized tribes in Arizona, and approximately

3 See White v. Califano, 437 F. Supp. 543 (D.S.D. 1977).


9

175,000 Indians reside on those tribal reservations. Five of these tribes operate tribal regional

behavioral health authorities under intergovernmental agreements with the State of Arizona.

For many years, this Arizona statute remained largely unused. In February 2008, a

representative from the Intertribal Council of Arizona (ITCA), a multitribal organization, alerted

the director of the Arizona Department of Health Services and local leaders of the Indian Health

Service to the critical need for training and informational outreach to the tribes and state‐

sponsored Regional Behavioral Health Authorities concerning the process of court‐ordered

treatment for on‐reservation Indians. As a consequence, state officials representing legal,

mental health, and Medicaid agencies were assigned to work with the ITCA staff to form an

Involuntary Commitment Work Group. At the urging of this work group, the Arizona

Department of Health Services and ITCA convened a tribal forum to illustrate a very negative

picture of American Indians awaiting needed admission to the Arizona State Hospital.

Frequently, these individuals languished in tribal jails for months on end, receiving no

behavioral health services at all. At a second forum several months later, tribal and state

representatives looked carefully at tribal involuntary commitment laws and procedures as well

as at the policies and practices of the state’s Regional Behavioral Health Authorities.

Based on these sessions, the work group set in motion a series of training sessions. During

October and November 2009, the Arizona Department of Health Services, ITCA, and tribal and

state‐charted behavioral health authorities conducted nine of these sessions focusing on A.R.S.

§ 12‐136, Indian tribal courts, involuntary commitment orders, and recognition. The training,

which was provided to state and tribal behavioral health providers, recognized tribal

sovereignty and its effect on the involuntary commitment process of American Indians residing

on tribal lands. Ongoing training continues on an ad hoc basis, conducted by a cadre of

especially knowledgeable individuals within state and tribal agencies.

In response to the relatively high turnover of individuals involved in implementing the law, the

work group also proposed development of a “Tribal Court Procedures for Involuntary

Commitment―Information Center” web page on Arizona’s Department of Health

Services/Division of Behavior Health Services web site. This comprehensive site includes

information about laws and regulations, state and tribal contacts, training resources, and links

to other materials, including agreements between tribes and state‐sponsored Regional

Behavioral Health Authorities. Visit the web page at

www.azdhs.gov/bhs/TribalCtInvCommitment.htm.


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Cultural Compatibility It is the responsibility of each tribe to put the law into place in a way that is consistent with

tribal law and culture and with state law that needs to be followed in order for the tribal

involuntary commitment order to be honored when it goes to the state court. State law limits

commitment to the state hospital to people who meet specific qualifications. For instance,

court rules require tribal orders to contain certain findings, and those findings are required by

state law in order for the state hospital to hold someone involuntarily for treatment.

Nonetheless, tribes in Arizona are able to structure their own tribal court proceedings so that

involuntary commitment is ordered only after a careful process that includes culturally specific

evaluations and consideration of culturally appropriate forms of treatment short of placement

in a state inpatient facility. For example, the provider manual of the Gila River Tribe states,

“Tribal court ordered treatment for American Indian tribal members in Arizona is initiated by

tribal behavioral health staff, the tribal prosecutor or other person authorized under tribal laws.

In accordance with tribal codes, tribal members who may be a danger to themselves or others

and in need of treatment due to a mental health disorder are evaluated and recommendations

are provided to the tribal judge for a determination of whether court ordered treatment is

necessary. Tribal court orders specify the type of treatment needed.”

As tribal staff initiates the tribal court‐ordered process, communication and clinical

coordination are required between tribal and state‐sponsored Regional Behavioral Health

Authorities to ensure continuity of care and avoid delays in admission to an appropriate facility

for treatment upon state/county court recognition of the tribal court order.

Enhancement of Tribal Authority State recognition of tribal court civil commitment orders expands the authority and reach of

tribal judiciaries, making it possible for tribal court directives to be carried out beyond

reservation boundaries and to compel the provision of state mental health services. The tribe

initiates the proceedings and makes the relevant determinations regarding treatment. So long

as the tribal court order includes findings respecting tribal jurisdiction, due process for the

affected patient, mental health diagnosis, and the least restrictive treatment alternative, the

tribal court order will be accepted by the state court and will be enforced. There is no

requirement of reciprocity on the part of the tribe.


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Intergovernmental Cooperation Effective implementation of A.R.S. § 12‐136 emerged from a joint initiative of a state agency

(the Arizona Department of Health Services) and an intertribal organization (ITCA). They formed

a joint work group that recommended further cooperative endeavors, including training

sessions and an informational web site. As federal judge William C. Canby Jr. has related, “In

Arizona, tribal judges who were members of the State–Federal–Tribal Forum pointed out that,

although state resources were theoretically available for mentally ill Indians, the State Hospital

would not accept civil commitments ordered by tribal judges. At first some state judges in the

Forum agreed to accept tribal court orders as a matter of full faith and credit, and issue state

court commitment orders based on the tribal orders. This informal arrangement solved the

problem in the short run. The Forum then suggested State legislation to remedy the problem.

With tripartite backing, the legislation easily passed and the State Hospital now accepts tribal

court commitment orders directly, as a matter of state law.”

Arizona state court recognition and enforcement of tribal court orders for involuntary civil

commitment has produced other cooperative activities involving mental health care providers

and the courts. This coordination is necessary to avoid delays

in admission to an appropriate facility for treatment, to ensure

continuity of care of tribal members for the duration of

treatment, and when members are transitioned to services on

the reservation. In Arizona, state‐sponsored Regional

Behavioral Health Authorities have entered into agreements

with tribes to address behavioral health needs and improve

the coordination of care for tribal members.

Fairness

Tribal codes and court processes provide the starting point for

this tribal–state court practice. Before state courts will

recognize and enforce a tribal court order, there must be a

finding by the tribal court that “the proposed patient received

notice of the civil commitment proceeding and the allegations

regarding the patient’s mental condition and had the

opportunity to be heard with the assistance of a person

recognized by the tribal court as competent to represent the

proposed patient.” The state’s attorney general is also given five days from the date of filing the

tribal court order to enter the state court proceeding and challenge the basis for the

“A.R.S. 12‐136 is designed to be a legal

bridge which is used for State Courts to

recognize Tribal Court orders. . . . I

believe that this has improved the

relationship between Tribal and State

Courts, that there is now a better

understanding of tribal sovereignty

over tribal lands, a better

understanding of behavioral health

programs within the state, the

providers, and even the tribal

behavioral health programs, on how

the two systems need to work

together, and what services are

available to tribes.”

—Lydia Hubbard‐Pourier, Tribal

Contract Administrator, Arizona

Department of Health Services


12

commitment. So there are many protections for the patient who would be subject to

involuntary commitment.

Keys to Success

The establishment of a multiagency, intergovernmental work group meant that stakeholders

from both sides were able to express their concerns, and initiatives enjoyed support from state

and tribal governments from the outset. The involvement and administrative support of a

multitribal organization, ITCA, made it possible for the work to proceed successfully and for all

Arizona tribes to participate and feel represented. The Arizona State‐Federal‐Tribal Court

Forum has monitored the initiative, identifying areas that require attention from state and

tribal court systems and governments. This forum has been developing a curriculum to educate

tribal and state court judges on how to interpret and implement A.R.S. § 12‐136. Finally, the

Arizona Division of Behavioral Health Services has, for the first time, incorporated reference to

A.R.S. § 12‐136 and its attendant requirements in its provider manual.

Leech Lake Tribal Court and Minnesota’s Ninth Judicial District Court

13

3. Leech Lake Band of Ojibwe Tribal Court and Minnesota’s Ninth Judicial District Court for Cass and Itasca Counties

Joint Powers Agreement

Founded: 2006 (Cass County); 2008 (Itasca

County)

Service area: Leech Lake Reservation and Cass

and Itasca Counties, Minnesota

Population: Approximately 9,000 Leech Lake

tribal members and non‐Indians in both counties

Source of funding: Minnesota State Court

Administrator’s Office and the Bureau of Justice

Assistance, U.S. Department of Justice, Tribal

Courts Assistance Program

Web site:

www.justice.gov/tribal/docs/fv_tjs/session_4/se

ssion4_presentations/Sustaining_Wellness_Courts.pdf

Additional Information: Korey Wahwassuck, The New Face of Justice: Joint Tribal–state

Jurisdiction. 47 Washburn L.J. 733 (2008).

Contact: Judge Korey Wahwassuck

Leech Lake Tribal Court

16126 John Moose Drive

Cass Lake, MN 56633

(218) 335‐3682

[email protected]

Program Description

The Leech Lake Band of Ojibwe Indians is located in the State of Minnesota, one of the

“mandatory” PL 280 states—meaning that in 1953, the federal government gave up most of its

Indian Country criminal jurisdiction in that state, and the state received authority to enforce its

criminal laws on reservations. As a consequence of PL 280, tribes in that state were denied

federal funding to develop their own tribal courts, although tribal court civil and traffic dockets

began to grow during the 1980s. Because state jurisdiction was introduced without tribal

consent or any federal funds to support it, tribal members have often viewed state criminal

State and tribal judges together acknowledge the addi on of the Leech Lake flag to the county courtroom.

Source: h p://ccllwellnesscourt.wordpress.com/.


14

justice as culturally inappropriate and inadequately responsive to community safety needs. The

result had been mistrust between tribal and state systems. Simultaneously, Leech Lake, like

many American Indian communities, was facing dire conditions due to the increasing

prevalence of drug and alcohol offenses. Because of PL 280, tribal members were processed in

state court, which turned into a revolving door, with offenders cycling in and out of the system.

There was a general frustration among tribal members, not only because tribal members were

coming back through the system, but because there was a feeling that the state courts were

not addressing tribal needs.

In an effort to address these conditions, the Leech Lake Tribal Court entered into two Joint

Powers Agreements with two of the four counties that overlap the reservation. In these

unprecedented agreements, one in 2006 and the other in 2008, the tribal and county courts

pledged to “jointly exercise the powers and authorities conferred upon us as judges of our

respective jurisdictions.” The agreement with Cass County produced a joint Wellness Court

aimed at DWI cases, and the agreement with Itasca County produced a joint Wellness Court

that combines drug and DWI cases. Following the Wellness Court model that focuses on

rehabilitation rather than punishment, these courts allow qualifying individuals sentenced in

the state court system to opt in to the program as an alternative to serving their sentences. In

the two courts, judges from both jurisdictions preside together. In Cass County, there is even a

videoconferencing system that allows tribal and county courtrooms to be used simultaneously,

with the defendant/client choosing the preferred location.

Both of these joint courts incorporate a multidisciplinary, multijurisdictional team that draws up

an individualized treatment plan and meets regularly to discuss and monitor each case. Clients

report their progress directly to the pair of tribal and county judges. Significantly, both courts

employ evidence‐based practices that are proven to reduce recidivism, including data‐based

decision making, identification of offender risk and appropriately targeted treatment

interventions, and balancing positive reinforcement with swift imposition of appropriate

sanctions for violating conditions. Results have been striking, including a significant reduction in

recidivism, coupled with reunification of families, an end to abusive relationships, and securing

of employment and valid drivers’ licenses. In 2010, the Joint Leech Lake/Cass and Itasca County

Wellness Courts were awarded honors by the Honoring Nations program at Harvard

University’s John F. Kennedy School of Government

(http://hpaied.org/images/resources/publibrary/joint%20tribal‐state%20jurisdiction.pdf).


15

Cultural Compatibility The joint nature of the two Wellness Courts means that criminal proceedings that once would

have taken place exclusively within the state court system can now benefit from culturally

appropriate tribal resources and involvement. For example, although the state may have access

to drug‐testing technology, Leech Lake can call on spiritual healers to help participants make

cultural connections and work through historical trauma. Additionally, tribal understandings of

restorative justice can find their way into the criminal justice process. At the broadest level, the

entire concept of authority can be reconceived to comport more closely with tribal conceptions

that stress collaboration rather than control or domination.

As Judge Korey Wahwassuck has observed, the day‐to‐day communications built into the

operation of the courts has also enhanced judges’ and staff members’ awareness and sensitivity

to cultural values and cultural differences. She notes, “These cultural values are important to

understand because they are part of the makeup of each individual and his or her approach to

society.”

Furthermore, Ojibwe ceremonies have been used to enhance the cultural legitimacy of the joint

Wellness Courts. For example, on the occasion of the signing of the agreement between Leech

Lake and Itasca County, a young Nishnabek boy made his way down the line of tribal and state

court judges at the county courthouse, smudging each one of the judges with cleansing smoke

to clear away any negative thoughts and feelings. The judges proceeded to the courtroom as a

youth drum group from the Leech Lake Band of Ojibwe’s Bug‐O‐Nay‐Ge‐Shig School sang an

honor song.

Enhancement of Tribal Authority The nation‐to‐nation nature of the Joint Powers Agreements hearkens back to the treaty‐

making era, when native nations were dealt with on a basis of mutual consent. At a more

practical level, the Leech Lake Band of Ojibwe had played no part in the criminal justice system

affecting its people before these agreements were made. Racial tensions were high, and the

tribe and state competed for sovereignty, often through litigation. With the new partnerships in

place, the Leech Lake Tribal Court participates in sentencing and can shape and supervise

appropriate treatment options. Energy that would have been spent on jurisdictional

competition can be used to achieve tribal goals, such as family reunification and safer roads.

At a more symbolic level, the Joint Powers Agreements have enhanced the stature and

legitimacy of the tribe among outside authorities and citizens. In Cass and Itasca Counties, for

example, the Leech Lake flag now flies alongside flags of the state and federal governments.

Moreover, this enhanced respect for the tribal court has led to other cooperative initiatives


16

“Joint tribal–state jurisdiction in

northern Minnesota has built a bridge,

not only between systems, but between

cultures. Ultimately, it will be up to

those who come after us to ensure that

the way remains open.”

—Judge Korey Wahwassuck

(Leech Lake), Judge John P. Smith

(Cass County),

and Judge John R. Hawkinson

(Itasca County)

“The execution of the Joint Powers

Agreements between the Tribal Court

and State District Courts within the

Ninth Judicial District are an important

example of how broader inter‐

governmental relations can begin to

come full circle back to that of coequal

sovereigns; it is fitting therefore that

just as the Wellness Courts promote

and foster healing for individuals within

our communities, the mutual respect

and efforts at cross‐jurisdictional

understanding and collaboration giving

rise to the Wellness Courts, as

embodied in the Joint Powers

Agreements, promote and foster

healing within the circle of Nations.”

—Leo Brisbois (White Earth Ojibwe),

the first Minnesota State Bar

Association President of American

Indian heritage and descent

that can extend the reach of tribal authority, including development of a multijurisdictional

delinquency court and joint hearings on custody cases not covered by the Indian Child Welfare

Act (ICWA).

Significantly, the joint tribal–state court arrangement expanded in 2010 to encompass juvenile

and family cases. Under this arrangement, review hearings are held in tribal court, with

supervision services provided by the Cass County Probation Department under a cross‐

jurisdictional appointment order. Both systems remain involved, and the reach of tribal

authority is extended.

Intergovernmental Cooperation The benefits of intergovernmental cooperation are plainly

manifest in the two Wellness Courts created by Leech Lake and

the two Minnesota counties. Sharing of resources has made it

possible for the justice system to produce positive results in an

era of shrinking budgets. Staff positions can be shared, and the

judges from each system can cover for each other should

scheduling conflicts arise. As Judge Wahwassuck of Leech Lake

points out, “The judges have worked so well together that they

have become very confident in each other and are comfortable

having the other judge handle the proceedings in their

absence. This is true even if it means that the tribal court judge

takes the bench alone in state court, or that the state court

judge takes the bench alone in tribal court.”

Keys to Success The Joint Powers Agreements emerged from a mutual

realization that the tribe and the counties shared common

problems and goals. The problems were high levels of alcohol‐

related crashes on county highways and high levels of drug and

alcohol addiction associated with criminal activity and family

dysfunction. The common goals included decreasing the

number of arrests for DWI, fewer fatalities, and decreased

recidivism rates. Once those common goals were identified, it

became easier to overcome centuries of mistrust and even

animosity.


17

Open communication and the development of mutual respect were essential to the success of

the partnerships. Participants from tribal and county courts learned how to disagree and still

reach a desirable result. Jon A. Maturi, Chief Judge of the Ninth Judicial District, has credited

the success of the collaborative efforts to “a mutual understanding of our respective

sovereignty, but, more importantly, [to] our mutual understanding of what we hold in common

and our joint desire to better serve the residents of [the] County, Leech Lake and the Ninth

Judicial District.”


18

Michigan State Bar and Michigan Tribes

19

4. Michigan State Bar and Michigan Tribes

Michigan Bar Journal’s Annual Directory

Founded: 1993

Service area: State of Michigan and native

nations located in that state

Population: All lawyers admitted to the

Michigan State Bar and 12 federally

recognized tribes in Michigan

Source of funding: Michigan State Bar

Resource: Honorary Michael F. Cavanaugh,

“Michigan’s Story: State and Tribal Courts Try

to Do the Right Thing,” 76 University of Detroit

Mercy Law Review 709 (1999),

http://turtletalk.files.wordpress.com/2007/12

/cavanagh‐michigans‐story.pdf

Contact: Michael Petoskey

Chief Judge

Pokagon Band of Potawatomi

P.O. Box 355

Dowagiac, MI 49047

(269) 783‐0505

[email protected]

Program Description Every year, the Michigan Bar Journal, a publication of the Michigan State Bar, produces a

directory issue, thick with information about lawyers, courts, and the legal system in that state.

Yet until the early 1990s, that directory issue completely ignored the growing number of tribal

courts located in Michigan. As a consequence, practitioners in the state were unaware of the 12

federally recognized tribes in the state—the third sovereign—in their midst and the range of

inter‐jurisdictional issues that could involve Michigan’s tribal courts.

The state courts’ inattention to tribal courts ended in 1992, when Michigan joined an initiative,

sponsored by the State Justice Institute, to convene meetings or forums of tribal and state

court judges on a statewide basis. In Michigan, seven state and tribal judges met and produced

Chief Judge Michael Petoskey of the Pokagon Band of Potawatomi presents a turtle drum to Michigan Supreme Court Justice Michael F. Cavanagh during a site visit to the Pokagon Band of Potawatomi Tribal Court by representatives from CASEY Family Programs, National Council of Juvenile and Family Court Judges & Michigan Court Improvement Program.


20

a number of recommendations. Through the work of the Indian Tribal Court/State Trial Court

Forum in Michigan, it became apparent to state court officials that nontribal lawyers, perhaps

even more than judges, needed to be educated about the nature and functions of tribal courts.

As the report of the forum noted, “Large numbers of non‐Indians visit Michigan’s Indian

reservations for gaming, pow wows and other activities. There are some non‐Indians living on

reservations in Michigan. A growing number of non‐Indians have business dealings with Indian

tribes. Indian children and parents throughout the state may be subject to tribal court

jurisdiction in proceedings that fall under ICWA. For all of these reasons, an increasing number

of attorneys are involved in tribal court cases. Most attorneys have no ready source of

information on tribal courts, so can easily be flustered when a client falls under tribal court

jurisdiction.”

To remedy that situation and to provide Michigan lawyers with some of the basic information

needed to work with tribal authorities, the Michigan State Bar was approached to ensure that

the annual directory issue of the Michigan Bar Journal would include detailed information

about tribal governments and their justice systems. The directory issue, which is sent to more

than 40,000 lawyers licensed in the state, contains a wealth of information about each tribe

located in Michigan:

The nature and organization of the tribe’s government;

Tribal constitutions and other governing documents;

The structure of the tribe’s court system;

The territorial jurisdiction of the tribe;

Caseloads during the previous year;

Requirements for admission to practice before the tribal court;

The tribal court’s facilities;

Current personnel;

The extent to which the tribe has entered into intergovernmental agreements; and

The sources of tribal law and procedure.

In addition, the Michigan Bar Journal periodically dedicates one of its monthly issues to Indian

law and tribal law. Since 1986, the Michigan Bar Journal has published four issues that were

specifically dedicated to exploring Indian law topics. Overall, the Michigan Bar Journal has

published 25 articles on Indian law issues during the past 25 years, on topics ranging from ICWA

to criminal jurisdiction, economic development, and tribal–state relations.


21

“[The directory offers] a wealth of

information, and provides a ready primer for

anyone who is going to be involved at any

level with the tribal court.”

—Justice Michael F. Cavanagh,

Michigan Supreme Court

Enhancement of Tribal Authority The directory was designed to

recognize the equal dignity of tribal

courts, and it heightened the

visibility, understanding, and

legitimacy of tribal courts among

outside practitioners. Tribal

sovereignty has been underscored

with information about tribal laws

and governmental organization. As

the understanding of tribal courts

increased, other cooperative

initiatives with the state courts

ensued. Most notably, in 1996, the

Michigan Supreme Court adopted Michigan Court Rule 2.615, Enforcement of Tribal Judgments,

which authorizes recognition of tribal court orders and judgments on the basis of comity.

Tensions can arise between tribes and nontribal citizens when practitioners fail to alert their

clients to the sovereign nature of native nations and their courts. Lawyers’ awareness of legal

considerations such as tribal sovereign immunity can help prevent conflicts. The directory

increases the likelihood that Michigan’s practitioners will be able to counsel their clients about

tribal jurisdiction and the implications for commercial and personal matters, thereby reducing

surprises and improving possibilities for respectful interactions.

Intergovernmental Cooperation

The Michigan Indian Judicial Association has worked with

the Michigan State Bar to provide updates for the

directory. Including tribal courts in the directory has

made it possible for judges and state court officials to

identify their counterparts in tribal court systems. This

knowledge, in turn, has facilitated new initiatives that enable the two court systems to work

together. In addition to joint training sessions for judges, run by the Michigan Judicial Institute,

tribal court representatives have been invited to participate in strategic planning activities by

the Michigan state court system.

Pokagon Band of Potawatomi Tribal Court


22

“If you’re going to have a directory of

courts, a compendium of all things legal,

then the tribal courts had to be included. . . .

The Directory also made it possible for

outsiders to understand the people

responsible—judges, administrators, clerks,

probation officers—the personnel who ran

the tribal court systems so that coordination

could occur.”

—Frederick Baker Jr.,

Former Chair, Publication and Website

Advisory Committee, Michigan State Bar

“The Michigan Bar Journal has contributed to

the visibility and respect for tribal courts

among members of the state bar by

providing detailed information about tribal

courts in its annual directory issue.”

— Associate Appellate Justice Wenona

Singel,

Little Traverse Bay Bands of Odawa Indians

and Assistant Professor of Law, Michigan

State University

Keys to Success

The support of leaders of the Michigan judiciary, through

the Indian Tribal Court/State Trial Court Forum, was

indispensable to the development of the section on tribal

courts in the annual directory. After its meetings and

report, the forum started looking for ways to ensure

continuing contacts and interaction, and the directory

was an important way to achieve that goal. The Michigan

Bar Journal first surveyed readers to determine what

kinds of information they wanted to see included in the

directory. In addition, the State Bar of Michigan has an

Indian Law Section and an American Indian Law

Committee, both of which worked with the Michigan Bar

Journal to ensure that the directory was sufficiently

comprehensive and informative.

Idaho State/Tribal Court Forum and Idaho State Judiciary

23

5. Idaho State/Tribal Court Forum and Idaho State Judiciary

Idaho Tribal Court Benchbook

Founded: 1997

Service area: State of Idaho and native nations located in that state

Population: State and tribal court practitioners and judges in Idaho and five federally

recognized tribes in Idaho

Source of funding: Idaho State Judiciary

Web site: h p://www.isc.idaho.gov/tribal/TribalCourtBenchBook_2005.pdf

Contact: Michael Henderson

Idaho Supreme Court Legal Counsel

P.O. Box 83720

Boise, ID 83720‐0101

(208) 334‐2246

[email protected]

Program Description The Idaho Tribal Court Benchbook was created by the Idaho State/Tribal Court Forum in order

to provide judges, lawyers, and litigants with information and a short description of tribal

judicial organizations and tribal judicial relationships with other jurisdictions, including citations

to additional authorities on these and other related topics. The Idaho State/Tribal Court Forum

was first convened in 1994, when the chief justice of the Idaho Supreme Court designated

members of the state judiciary to serve and invited the federally recognized tribes in Idaho to

send their own representatives. In an effort to alleviate jurisdictional conflicts and enhance

mutual respect, the forum recommended development of a tribal court benchbook. As the

preface to the publication indicates, the members of the forum set out to create “a benchbook

dealing with the laws and customs of the various Tribes, as well as identifying those lawyers

Source: http://www.isc.idaho.gov/tribal‐state/tribalcourt


24

“Now we have a source that can

be relied upon about who the

tribal judges are, who the

prosecutors are, where to find

the tribal law and order codes,

and similar matters. The

Benchbook is also a very useful

place to start for information

about jurisdictional issues.”

—Judge Gaylen Box,

Magistrate Judge,

State of Idaho

admitted to practice before each of the Tribes, which would be helpful to the Judges of the

Idaho Judiciary and the Indian Tribes.”

The benchbook describes each tribe’s judicial organization and supplies names, addresses, and

information relating to each of the sovereign tribes existing in the State of Idaho. It also lays out

basic principles of federal Indian law that support tribal governmental powers, including judicial

powers, and explains the legal framework of tribal, state, and federal jurisdiction, both civil and

criminal. The benchbook then proceeds to describe the extent to which tribal and state courts

are obliged to recognize and enforce one another’s judgments and identifies other important

interactions between tribal and state courts, including choice of law questions and the

possibility of overlapping proceedings in the two court systems. Where matters remain legally

uncertain, the benchbook notes that fact. It also provides Idaho legal authorities on specific

topics such as search warrants and the status of traffic infractions.

The benchbook is updated periodically, the latest update having occurred in 2005. A web site

was also created that provides easily accessible and more up‐to‐date information on the tribal

courts in Idaho, as well as descriptions of the tribal governments, histories, and web sites of the

five federally recognized tribes in Idaho (http://www.isc.idaho.gov/tribal‐state/tribalcourt).


The Idaho Tribal Court Benchbook and its associated web site

have raised the profile of tribal courts in Idaho, underscoring

their jurisdiction and powers as an expression of tribal

sovereignty. These resources provide Idaho judges with

information about the sources and scope of tribal authority

readily available and are primed to detect issues of cross‐

jurisdictional recognition of judgments and the need to

coordinate overlapping legal systems. When issues of tribal

jurisdiction arise in state court, the state court judges are better

informed about tribal courts and the roles they serve in tribal

communities, which may lead to more respectful decisions.


The Idaho Tribal Court Benchbook is a product of tribal and state court cooperation, as it grew

out of the Idaho State/Tribal Court Forum, a joint effort by state and tribal court systems. The

benchbook also promotes intergovernmental cooperation by identifying the personnel in tribal

courts who should be contacted to serve as partners for joint initiatives with state judges and

judicial staff. Finally, the benchbook affirms the need for cooperation between tribal and state


25

“While state courts in their

structures, staffing, and rules

were pretty well known, tribal

court structures, judges,

staffing, and rules were pretty

much unknown. The fact that a

growing number of cases was

being heard by tribal courts

made it important to get out

information for practitioners

and state court judges alike.”

—Director Douglas Nash,

Institute for Indian Estate

Planning and Probate, Seattle

University Law School and

Former Chief Counsel, Nez

Perce Tribe

courts by highlighting the jurisdictional uncertainties that abound in Indian Country. It also

identifies opportunities for cooperation between tribal and state

court systems through such practices as recognizing one another’s

orders and judgments and choosing tribal law to resolve disputes

heard in state court.

Keys to Success

Strong relationships and greater mutual understanding built

through the Idaho State/Tribal Court Forum gave rise to the Idaho

Tribal Court Benchbook. As the preface to the benchbook states,

“For more than 150 years non‐Indian residents of the State of

Idaho have lived adjacent to the five Indian Tribes of

Idaho―Kootenai, Coeur d’Alene, Nez Perce, Shoshone‐Bannock,

and Shoshone‐Paiute. In 1994, the Supreme Court of the State of

Idaho determined that it was time we became neighbors,

understanding and respecting each other’s customs, lifestyles and

laws.” That leadership and commitment were indispensable to the

successful implementation of the benchbook. A visionary chief

justice of the Idaho Supreme Court gave relatively free rein to the forum to devise strategies for

improved relations, and the benchbook was one of its first priorities.


26

Arizona Supreme Court and Arizona Tribal Courts

27

6. Arizona Supreme Court and Arizona Tribal Courts

Rule Providing State Recognition of Tribal Court Judgments

Founded: 2000

Service area: State of Arizona and Indian

Country throughout the United States

Population: Judges of Arizona courts and

litigants before tribal courts

Source of funding: Arizona Judicial Branch

Web site:

www.azcourts.gov/portals/93/handouts/r

ules_recognitn_tribaljudgments.pdf

Contact: David Withey

Arizona Administrative Office of

the Courts

1501 West Washington St # 411

Phoenix, AZ 85007‐3235

(602) 452‐3500

[email protected]

Program Description

Sometimes a civil plaintiff who wins a case before a tribal court needs to enforce the judgment

outside the reservation through a state court. For example, the winning plaintiff may need to

collect on a money judgment, and the losing defendant may have all of her or his assets in an

off‐reservation bank. If the situation involved two states, the U.S. Constitution and federal

statutes would require that “full faith and credit” be given to the original judgment, and the

second state would have to enforce the judgment of the first state as if it were its own. When

the original judgment is from a tribal court, however, federal requirements of full faith and

credit are not so readily applied.

The Arizona Supreme Court responded to this situation by adopting a rule of court, titled Rules

of Procedure for the Recognition of Tribal Court Civil Judgments, which supports enforcement

of tribal court judgments if certain conditions are met. A copy of the rules can be found on the

web site of the Arizona Judicial Branch

(www.azcourts.gov/portals/93/handouts/rules_recognitn_tribaljudgments.pdf). Under these

Source: http://itcaonline.com/?page_id=16


28

rules, although the enforcement of tribal court judgments is not as automatic as full faith and

credit, enforcement is required in the absence of an objection. If there is an objection, the

conditions attached to enforcement are similar to those provided for judgments of courts of

foreign countries. Considerations following an objection to enforcement are divided into two

categories: mandatory and discretionary. The mandatory considerations are that the tribal

court lacked jurisdiction (either personal or subject matter) and the defendant was not afforded

due process. The discretionary considerations are whether the tribal judgment was obtained by

fraud, whether the tribal judgment conflicts with another final judgment that is entitled to

recognition, and whether the tribal judgment is inconsistent with the parties’ contractual

choice of forum. Arizona’s rules are unusually clear and detailed about the procedures to be

followed in seeking enforcement of a tribal court judgment, making them especially helpful to

litigants and judges.


Several other states, such as Michigan, North Dakota, and Minnesota, have rules of court

authorizing enforcement of tribal court judgments and establishing a presumption that the

tribal court judgment should be enforced. The Arizona rules stand out, however, because they

are especially respectful of tribal sovereignty. They set a respectful tone from the beginning by

stating that “determinations regarding recognition and enforcement of a tribal judgment . . .

shall have no effect upon the independent authority of that tribal judgment.” Failure to enforce

does not diminish the validity of the original tribal court order. The rules also state that

“nothing in these rules shall be deemed or construed to expand or limit the jurisdiction either

of the State of Arizona or any Indian tribe.” As Dean Kevin Washburn of the University of New

Mexico School of Law has observed, these statements are useful in educating judges and

individuals who are unfamiliar with the authority and role of tribal courts. In addition, he states,

“in elucidating the Arizona Supreme Court’s own understanding as to the authority of tribal

courts, the statements set a tone of respect for the courts of the ‘Third Sovereign.’”

The Arizona rules stand out in other ways as well. Unlike the North Dakota rules, they apply to

tribes throughout the United States, not just to tribes in the single state. Unlike the Michigan

rules, they apply regardless of any reciprocity offered by the tribe whose judgment is presented

for enforcement. Arizona will enforce a tribal court judgment from any tribe in any state,

regardless of whether that tribe’s courts are willing to enforce Arizona judgments. The absence

of a reciprocity requirement means that tribes are not pressured to enforce state judgments

with which they may disagree.


29

“The Arizona Supreme Court Rules of

Procedure for the Recognition of Tribal

Court Judgments . . . reflect

tremendous respect for tribal courts

and provide clear guidance to lower

state court judges as to how to handle

tribal court judgments.”

—Dean Kevin Washburn,

University of New Mexico

School of Law

“These rules provide tribal court

litigants with confidence that, if

necessary, they can enforce any order

or judgment they obtain from the

tribal court in Arizona courts and a

reliable and consistent means of

obtaining that enforcement and

recognition. . . . Although several

states have adopted rules governing

the recognition and enforcement of

tribal court judgments, the approach

of Arizona is among the best rules

that have thus far been developed and

is a model for other states to emulate.

The Arizona rules are excellent for

demonstrating respect for tribal

courts and tribal sovereignty and

fostering positive relationships

between the state and Indian tribes.”

—Brad S. Jolly,

Indian law practitioner,

Minneapolis, Minnesota

Fairness

Under the Arizona rules, a tribal court judgment will not be

enforced if there is an objection and the objecting party proves

that due process was not provided before the tribal court or

that the tribal court lacked jurisdiction. It is up to the state

court, which is being asked to recognize and enforce the tribal

court judgment, to determine whether due process was

afforded to the losing party in tribal court. Thus a fairness

requirement is built into the rules.


The Arizona rules emerged from a cooperative endeavor of

tribal and state court judges, the Arizona Court Forum, which

was created in 1989 and continues to this day as the Arizona

State, Tribal, and Federal Court Forum. A 1991 report of the

forum pays tribute to the former Chief Justice Frank X. Gordon,

stating that “he has, among other things, opened the State

Court Judges’ Annual Conference and training to tribal court

judges; he has established good working relationships with

many tribal court judges; he has visited tribal courts; and he has

actively and consistently supported the efforts of this Forum.”

The rules also lend support to cooperation between state and

tribal courts. For example, Rule 7 provides that when issues

arise as to the validity of a tribal court judgment, the district

court “shall . . . attempt to resolve any issues raised . . . by

contacting the trial court judge who issued the judgment.”

Dean Washburn notes that this rule “actually encourage[s]

inter‐sovereign judicial cooperation.”

Keys to Success

The Arizona rules were adopted following a 10‐year period of study and negotiation begun

under the auspices of the Arizona Court Forum. Because the forum was a project of the

Conference of Chief Justices of State Courts, the rules proposal benefited from tremendous

support at the level of the Arizona Supreme Court. Yet even though the proposal involved

relations between tribal and state courts, the federal courts played a role in the successful

adoption of the rules. By the time the proposal emerged, federal judges had been invited to


30

join the forum; and it was a federal Ninth Circuit decision about recognition of tribal court

judgments in federal court that served as a model for the Arizona rules. Finally, the longevity,

stature, and visibility of tribal courts in Arizona may have contributed to the successful

adoption of the rules.

Ninth Judicial District of Wisconsin and Five Signatory Tribes

31

7. Ninth Judicial District of Wisconsin and Five Signatory Tribes

Tribal/State Protocol for the Judicial Allocation of Jurisdiction (AKA Teague Protocol)

Founded: 2005

Service area: Ninth Judicial District of Wisconsin and five

signatory tribes

Population: Tribal and state judges and litigants in their

courts

Source of funding: Participating state and tribal court

systems

Web site:

www.wicourts.gov/courts/committees/tribal.htm

Contact: Judge David Raasch

Associate Judge (Retired)

Stockbridge‐Munsee Tribal Court

N8476 Moh‐He‐Con‐Nuck Road

P.O. Box 70

Bowler, WI 54416

(715) 793‐4397

[email protected]

Program Description

Wisconsin’s Teague Protocol was established for situations in which tribal and state courts have

jurisdiction over the same civil dispute, such as a contract or personal injury claim, or a family

law matter. Although these situations arise most often in states that have jurisdiction over

reservation matters under PL 280, such as Wisconsin, they can arise in non‐PL 280 jurisdictions

as well. In some of these shared jurisdiction cases, each side may have a claim but one side may

file in tribal court and the other in state court. When both of these cases are pending as part of

the same dispute, there is a question as to what the two judicial systems should do. If there is

no coordination, the pendency of the two lawsuits will lead to a “race to the courthouse”

because the first lawsuit to end can claim priority.

This dilemma occurred in a dispute between Jerry Teague and the Bad River Band of Chippewa.

Teague brought an action in state court claiming that the Bad River Band had breached his

Lac du Flambeau former Chief Judge Ernest St. Germaine holds a stone with burning tobacco as Forest County Potawatomi Chief Judge Eugene White Fish draws smoke toward himself during a ceremony for the signing of the Teague Protocol. Stockbridge‐Munsee Judge David Raasch stands with head bowed after receiving the smoke. Photo by Tony Anderson. Source: http://wislawjournal.com/2005/08/03/state‐tribal‐courts‐sign‐jurisdictional‐agreement/


32

employment contracts. While that case was pending, the band brought suit in tribal court

claiming that the contracts were invalid. The jurisdictional issues were so complex that the case

reached the Wisconsin Supreme Court on three separate occasions. Repeatedly, that court

urged the state and tribal judges to hold a conference in order to decide which system should

handle the litigation. The court indicated that comity (respect and deference to other court

systems) should be a guiding principle and even suggested considerations for the courts to take

into account in conducting their conference. In 2005, the five tribes and the Ninth Judicial

District signed what has come to be known as the Teague Protocol, which incorporates the

considerations articulated by the Wisconsin Supreme Court and protects against the kind of

protracted conflict that occurred in the Teague case. A similar protocol was established

between Wisconsin’s Tenth Judicial District and four Chippewa tribes in 2001.

Under the Teague Protocol, state court and tribal court judges temporarily stop actions that are

filed in both courts and hold a joint hearing or conference to determine which court should

handle the case. Thirteen different factors are to be taken into account in deciding which court

should take jurisdiction, including whether the case involves a matter of state or tribal law, how

far the case has proceeded in each court, how much time and money the courts have invested

in the case, and any cultural issues for the tribe. If the two judges cannot reach an agreement,

the agreement allows for a third judge to help resolve the matter. This third judge is selected

from a standing pool of tribal and state court judges. A random selection is made if the two

judges presiding on the cases cannot agree on a choice. The Teague Protocol is available at

www.tribal‐institute.org/download/TeagueProtocol.pdf.


The Teague Protocol includes considerations that show respect for the tribal cultures as they

are expressed through tribal law and courts. Specifically, in deciding which court should handle

the litigation, the conference between the judges of the two courts is directed to take into

account whether the issues in the case require application and interpretation of a tribe’s law or

state law and whether “the case involves traditional or cultural matters of the tribe.” Thus, if

tribal cultural issues arise in the litigation, the Teague Protocol makes it far more likely that

those issues will be resolved by a tribal court that will be far more knowledgeable about them.


The Teague Protocol is a consensual arrangement, built on the assumption that dealings

between the state and the tribes reflect a government‐to‐government relationship. Tribal court

judges are on an equal footing with state court judges at each step along the way. Moreover,

the operation of the protocol creates opportunities for the extension of tribal authority.


33

Without the protocol, it would be possible for cases to proceed simultaneously in state and

tribal court; if the state litigation reached judgment first, the subsequent tribal court judgment

might not be recognized in state court. The protocol prevents such an outcome by directing the

proceedings to a single court. Moreover, if the issues in the case implicate tribal sovereignty

through the subject of the litigation or the identities or immunities of the parties, or the case

involves application of tribal law or cultural matters of the tribe, the tribal court is quite likely to

be the forum that is selected. For example, if a tribe or tribal official is party to the lawsuit and

in a position to invoke sovereign or official immunity, that factor would weigh heavily in favor of

choosing the tribal court under the protocol. Thus respect for tribal sovereignty, lawmaking,

and culture are built into the terms of the protocol. Just to emphasize that point, the last

section of the Teague Protocol states, “Nothing in this Protocol is intended to alter, diminish, or

expand the jurisdiction of State or Tribal Courts, the sovereignty of States or Tribes, or the

rights or obligations of parties under State, Tribal, or Federal law.”

Significantly, the protocol has prompted other measures that have enhanced tribal authority.

The Wisconsin State–Tribal Justice Forum, first organized during the 1990s, was reinstated in

2005 and charged with promoting and sustaining communication, education, and cooperation

among tribal and state court systems. During its meetings, the forum learned of several types of

litigation, such as child support cases involving tribal members, in which tribal and state courts

were transferring cases in a discretionary manner as justice requires. These situations were not

covered by the Teague Protocol, as there was no requirement of a related action already

pending in tribal court at the time of transfer. Desiring to formalize this process so that it could

be understood and invoked more widely, the forum petitioned the Wisconsin Supreme Court to

promulgate a rule on discretionary transfer of civil cases from state to tribal court whenever

both courts have jurisdiction. According to the proposal, if the tribal court declines to accept

the transfer, the case will remain in state court. The proposal had been reviewed not only by

state judicial and legislative agencies, but also by the Wisconsin Tribal Judges Association―a

sign of robust intergovernmental cooperation. In 2008, the Wisconsin Supreme Court approved

the rule, § 801.54, further enhancing tribal authority.

Fairness

The Teague Protocol incorporates considerations of fairness to the litigants throughout. For

example, in determining whether the state court or the tribal court should proceed with the

litigation, the protocol states that judges should consider how much time and money the

parties have expended in each court and “the relative burdens on the parties, including cost,

access to and admissibility of evidence and matters of process, practice, and procedure,

including whether the action will be decided most expeditiously in tribal or state court.” Out of

concern for fairness to the parties, the choice of court must take into account how difficult it


34

“Comity is all about respect for the

two sovereigns. It’s the development

of an idea in the spirit of cooperation.

And the recognition that each

sovereignty has its own laws and

those laws are approved by its people.

Comity only works if you accept the

differences that each sovereign has

and their various legal processes.

Comity is supposed to respect and

allow for these differences. Foremost,

it needs to have due regard for the

rights of the citizens of each

sovereign.”

—Former Chief Judge

Edward Brunner,

Wisconsin’s Tenth Judicial District

“It wasn’t easy. On the state side, they

were dealing with one sovereign―the

State of Wisconsin. On the tribal end

of it, we were dealing with five

separate sovereigns, which included

five separate tribal councils. We are

very proud that it’s here [the

protocol]―that we have a mechanism

to discuss these things.”

—Judge David Raasch,

Stockbridge‐Munsee Tribal Court

would be to carry out the litigation in that system, given

elements of timing, cost, and logistics. Finally, at each step

along the way, parties are given an opportunity to challenge

the jurisdiction of the state and tribal courts to ensure that

each forum has been properly invoked.


The Teague Protocol is a triumph of intergovernmental

cooperation, with its development as a bilateral agreement

and its provisions for joint action by state and tribal court

judges. Rather than fight over jurisdiction and which system

would deliver the controlling judgment, the state judicial

district and the tribal courts have agreed to identify

applicable considerations for allocating jurisdiction and then

set up a fair process for resolving differences of opinion

between the tribal and state court judges regarding how to

apply those considerations. Although the Teague Protocol is

not used often, its availability has contributed to a spirit of

cooperation between tribal and state judiciaries. To date,

working relationships between tribal and state judges have

become so successful that there has never been an instance

in which a third judge had to be selected to overcome an

impasse between the views of the tribal and state court

judges under the protocol.

Keys to Success

A series of conferences and gatherings that brought together

state and tribal court judges led to strong interpersonal

relationships among those judges. Through a long, relatively

informal process of listing issues on paper charts, they became well acquainted with one

another and realized that they had many of the same questions and often dealt with many of

the same people. Eventually, jurisdictional competition was set aside.

Yurok Tribal Court and Coun es of Del Norte and Humboldt

35

Chief Judge Abby Abinanti, Yurok Tribal Court. Source: http://www.yuroktribalcourt.com/

8. Yurok Tribal Court and Counties of Del Norte and Humboldt, California

Coordinated Adult and Juvenile Probation

Founded: 2009

Service area: Counties of Del Norte and Humboldt,

California

Population: Members of the Yurok Tribe residing in those

counties

Source of funding: Tribal and county governments, grant

from the U.S. Department of Justice Coordinated Tribal

Assistance Solicitation, and support from the California

Administrative Office of the Courts

Web sites:

www.yuroktribe.org/tribalcourt/wellness_court.htm

www.yuroktribe.org/documents/wellnessgrant.pdf

Contact: Abby Abinanti

Chief Judge

Yurok Tribal Court

(707) 482‐1350

[email protected]

Program Description

The Yurok Tribal Court, established in 1996, has rapidly developed into one of the most active

tribal courts in California. Like other California tribes subject to state jurisdiction under PL 280,

the Yurok Tribe has not benefited from Department of the Interior funding for tribal court

development. For that reason and others, it has not yet asserted general adult criminal

jurisdiction. Nonetheless, as part of a broader cultural revitalization movement, the tribe has

been exercising forms of concurrent jurisdiction and seeking ways to assume more

responsibility for its people through cooperative arrangements with local counties and creative

use of other federal funding opportunities.

In 2009, the Yurok Tribal Court instituted a Wellness Program, with support from the Bureau of

Justice Assistance (part of the U.S. Department of Justice), to supply outpatient and residential

treatment to tribal members experiencing substance abuse problems. The focus of the program


36

is on reintegrating such individuals into the culture and life of the Yurok community and on

helping them establish a crime‐ and drug‐free lifestyle. To enter the program, individuals must

petition the Yurok Tribal Court and submit to its jurisdiction. If clients of the program are on

probation or parole through the state court system, case managers and community workers

work with them to meet the terms and conditions of their probation or parole, including

meeting requirements for substance abuse testing. The tribe has contracted for residential

treatment at a facility in San Francisco, and through its Family Wellness Program provides a

wide range of educational, housing, vocational, and counseling services, as well as cultural

programs such as Yurok language classes, regalia making, traditional foods, and canoe carving.

Based on the capacity developed through its Wellness Program, the Yurok Tribal Court has

approached its two local counties (Del Norte and Humboldt) and proposed taking on

responsibility for nonviolent tribal adult offenders and juveniles on probation. Through PL 280,

county courts currently handle criminal prosecutions, including pretrial, probation, parole

services, and juvenile matters. California’s state court system has experienced sharp budget

reductions, however, that have severely limited the availability of such services. Moreover,

those services were never tailored to the cultural needs of tribal members. With help from a

major grant from U.S. Department of Justice, the Yurok Tribal Court is entering into memoranda

of understanding (MOU) with the two local counties to officially sanction the co‐monitoring of

offenders and to establish protocols that will assist in transferring cases and securing state

court recognition of tribal court orders.

One MOU with Humboldt County provides for joint supervision of tribal members sentenced to

ankle monitoring for curfew compliance and alcohol consumption. The tribal court may

recommend or refer a tribal member for placement in the program, which is limited to

minimum‐security inmates and low‐level offenders related to substance or alcohol abuse.

According to the MOU, the tribal court establishes a plan and weekly schedule for the

participant with the Yurok Wellness Program in order to facilitate the participant’s daily

activities, including cultural activities and treatment. The tribal court is also responsible for

compliance monitoring and reporting of violations to the county court under this cooperative

arrangement.

Other MOUs provide for the tribal court to conduct mental health screening, treatment

planning, case management, and court monitoring for juvenile offenders and adults in Del

Norte and Humboldt counties. The tribal court has hired a clinical coordinator to increase

access to mental health services, substance abuse counseling, and other culturally relevant

services for tribal youth who have become involved in the state juvenile justice system.

The ultimate goal for the Yurok Tribe is to assume jurisdiction over all these cases, exercising its

concurrent authority. In the meantime, the state and tribal systems have agreed to allocate


37

parts of the process to the entity that can be most effective in addressing problems of

substance abuse and associated offenses. In the case of juveniles in Del Norte County, for

example, an MOU has been negotiated that provides for the two jurisdictions to coordinate the

disposition of cases, allowing for a joint determination to be made about which jurisdiction will

handle the primary disposition of a youth’s case. Information is to be shared between the two

court systems, and a procedure has been established for postponement of cases pending in

county court in situations where the tribal court has assumed jurisdiction and the youth

completes an accountability agreement and any other conditions ordered by the tribal court.

The MOU acknowledges both concurrent jurisdiction and the possibility of the tribal court

petitioning for transfer of cases from the county.


When tribal adults and youth are brought before the state courts, they encounter a system that

typically operates according to a different set of cultural values and norms than their home

communities. They are not being held accountable to elders and other culture bearers in their

communities, and they are not being guided toward healthier, more constructive forms of

behavior through tribal cultural practices. With the Yurok Tribal Court, on the other hand, there

is a strong emphasis on trying to resolve problems as opposed to apportion guilt or

responsibility, and there is considerable use of cultural practices to assist in restoring

individuals to a well‐functioning state. Tribal members who are referred from state courts for

monitoring and supervision by the Yurok Tribal Court gain access to community support,

treatment options, and culturally grounded restorative programs. In the case of tribal youth,

both court systems have acknowledged that the tribal court will order culturally appropriate

education and case plan activities, including a restorative justice component, for all juvenile

offenses.

Fairness

Individuals are referred from county courts to the Yurok Tribal Court only after they have

consented to participate in the program. Their consent ensures that the benefits and potential

sanctions for participating in the Yurok tribal wellness program or ankle monitoring are agreed

upon by the participants.

An important fairness consideration that has drawn the attention of the participating counties

is equal protection. Are programs made available to tribal members that are not available to

other county citizens? Arguably, the fact of concurrent tribal court jurisdiction and higher court

decisions upholding distinctions based on tribal membership should allay these concerns. For


38

“Especially with the state’s

’realignment’ sending people from

prison to county jail, the ankle

monitoring program provides a

fabulous opportunity for us to

cooperate with the Tribe and to do

something that is tremendously

beneficial both to the Tribe and the

local community. . . . It’s an

opportunity for folks who would be in

jail to engage in more culturally

appropriate endeavors and to do their

time in an alternative fashion.”

— Superior Court Judge

Christopher Wilson,

Humboldt County

“We’re institutions that occupy the

same space. We’re similar and we can

and should share. I think if we can

create a successful model, . . . we can

actually provide them with a lot of

assistance, . . . [such as] collaborative

court[s], wellness court[s,] and the

like.”

—Chief Judge Abby Abinanti,

Yurok Tribal Court

the ankle‐monitoring program, the fact that private ankle‐monitoring arrangements are

permissible under state law made the equal protection issues less challenging.


MOUs among the affected agencies at the county and tribal levels have been the vehicles for

achieving intergovernmental cooperation between the Yurok Tribal Court and Del Norte and

Humboldt counties. These agreements have made it possible for each governmental entity to

assume responsibility for those functions it can discharge most effectively and with greatest

financial support. Rather than contest one another’s jurisdiction, the counties and tribe have

agreed to share parts of the criminal justice process and to respect one another’s actions within

each government’s agreed‐upon sphere.

Keys to Success

The Yurok Tribal Court went about building its own capacity

for monitoring, supervision, and treatment of tribal offenders

through its Tribal Wellness Program before bringing its ideas

and finances to the local county judges. With the counties’

budgets under extreme pressure, offers from the tribal court

were enthusiastically received by the local state court

system. The counties simply did not have the resources to

supply the kind of treatment options that the tribal court

could provide. Furthermore, Humboldt and Del Norte

Counties are not heavily populated, and the Native American

presence is substantial and visible. The tribes in that area are

perceived as active and positive contributors to the broader

community, through the casinos and through their cultures. As

one state court judge observed, “We all have a pride in

seeing the Native American community culturally evolve and

become stronger as time goes on.”

In addition, mutual trust had been built over time through a

series of other cooperative endeavors, such as cross‐

deputization agreements and a child support program

established by a grant obtained by the tribe and located in

space shared with Humboldt County. It was also helpful that

the chief judge of the tribal court had served in the state

court system and understood its processes and personnel


39

very well. Furthermore, the California judiciary has been promoting tribal and state court

cooperative efforts. In 2010, the chief justice of the California Supreme Court established the

California Tribal Court/State Court Coalition, the first organization of its kind in the state, to

improve working relationships among the court systems and to focus on matters of mutual

concern. One the coalition’s priorities has been identifying situations in which tribal and state

courts can effectively share, allocate, or transfer jurisdiction across case types, including

matters involving probationers and parolees. The California Administrative Office of the Courts

has provided training and other support for the development of tribal court collaborative

justice projects, such as the ones established at the Yurok Tribal Court.

New York Federal‐State–Tribal Courts Forum

40


41

9. New York Federal-State–Tribal Courts Forum

Listening Conference

Founded: N.Y. Federal‐State–Tribal Court

Forum was founded in 2004; The Listening

Conference was held in 2006.

Service area: New York State

Population: New York State court

employees, representatives of New York

Indian nations, and federal judges

Source of funding: New York State Judicial

Institute; Bureau of Justice Assistance;

Syracuse University Center for Indigenous

Law, Governance, and Citizenship; and

Tribal Judicial Institute

Web sites: www.nyfedstatetribalcourtsforum.org/

www.nyfedstatetribalcourtsforum.org/pdfs/NYSBA.pdf

Contact: Joy Beane

New York State Judicial Institute

84 North Broadway

White Plains, NY 10603

(914) 824‐5802

[email protected]

Program Description

The Federal‐State–Tribal Court Forum was founded in 2004 through the initiative of Chief Judge

Judith S. Kaye of the New York Court of Appeals, who formed a committee in 2002 engaging the

tribal nations within the state, as well as federal and state judges, to study the possibility of

starting a tribal–state‐federal forum in New York State. The forum emerged with three main

priorities:

1. To ensure accurate application of ICWA at the federal and state level;

2. To devise a means of achieving full faith and credit for judgments of tribal justice

systems and federal and state courts; and

Photo Source: http://www.nyfedstatetribalcourtsforum.org

/listeningConference/index.shtml


42

“All in all, the participants in the First

New York Listening Conference felt

they had created a blueprint for

building solid bridges between Native

and non‐Native justice systems in our

state, while respecting their discrete,

parallel pathways, as symbolized by

the Guswhenta.”

—Justice Marcy L. Kahn,

New York Court Supreme Court,

“This effort is important for state and

tribal court systems to begin

developing a positive relationship.

One of the great things they’ve done

is they’ve agreed not to talk about

issues that would break down a

conversation, like land claims and

gaming. I think the key is in keeping

the lines of communication open and

looking for ways to work with state

courts.”

—Chief Judge P. J. Herne,

St. Regis Mohawk Tribal Court

3. To provide judicial education and training, not only about relevant law but also about

the cultures and justice systems of nations and tribes indigenous to what is now New

York State.

As a means to achieve these goals the forum held its first Listening Conference in 2006,

convening state and federal judges and court officials in sessions with tribal judges, chiefs, clan

mothers, peacemakers, and other representatives from the justice systems of New York’s

Indian nations to exchange information and learn about respective concepts of justice. The

Listening Conference, a first step in a dialogue and ongoing educational program, included

panel discussions of topics such as child welfare, civil and criminal jurisdiction, and native

justice systems and concepts of restorative justice. In addition, participants and panelists

discussed potential solutions to the problems presented by different coexisting justice systems.


Before the New York Listening Conference, the state court

committee involved in development of the forum made visits to

the Onondaga Longhouse and the Oneida and Tuscarora

reservations to meet with clan mothers, elders, and tribal

officials. The visual theme of the conference was inspired by the

Two Row Wampum (Guswhenta), a symbol of the principles

governing relationships between the Iroquois/Haudenosaunee

and the European nations at the time of first contact—two

vessels traveling side by side, neither forcing its way into the

other or trying to steer the other. A member of the Oneida

Nation’s Men’s Council addressed the conference with an

explanation of the Guswhenta. Tribal ceremonies and dances

were incorporated into the proceedings, and tribal culture

bearers and spiritual leaders were recognized, heard, and given

positions of honor.

A central goal of the forum is to enhance federal and state court

judges’ understanding of native cultures and justice systems in

order to increase sensitivity to and respect for tribal cultures

and tribal courts. The Listening Conference was one of the first

steps in developing that understanding and building

relationships.


43

Keys to Success

Well‐supported, inclusive planning and systematic follow‐up have been keys to the success of

the New York conference. The Listening Conference was the culmination of three years of

meeting, planning, and trust building, and it was the beginning of an ongoing, open dialogue to

address critical issues that arise at the modern intersection of state, federal, and native justice

systems in New York.

The state courts’ involvement was initiated in 2002 by the Chief Judge Judith S. Kaye of the

state’s highest court. The planning and success of the Listening Conference jumpstarted and

solidified the Federal‐State–Tribal Court Forum in New York. In 2007 the forum sponsored two

New York regional conferences specifically on ICWA issues. Additionally, a pilot project on full

faith and credit developed a protocol between the Oneida Nation and the Fifth Judicial District. The

forum continues to meet semiannually to address common interests and concerns.

New Mexico Tribal‐State Judicial Consor um and Cross Cultural Exchanges

44


45

10. New Mexico Tribal–State Judicial Consortium and Cross Cultural Exchanges

Founded: 1998

Service area: New Mexico

Population: New Mexico state court

employees, representatives

of New Mexico Indian

nations, and federal judges

Source of funding: New Mexico

legislature, general

fund, and the Bureau

of Justice Assistance,

U.S. Department of

Justice

Web sites: www.nmcourts.gov/tsconsortium

www.nmbar.org/AboutSBNM/sections/IndianLaw/ILdocs/consortiumcross‐

courtculturalexchangs.pdf

Contact: Kathy Spurgin

Administrative Office of the Courts

237 Don Gaspar, Room 25

Santa Fe, NM 87501‐2178

(505) 827‐4808

[email protected]

Program Description

The New Mexico Tribal–State Judicial Consor um was established in 1998 by the joint ac on of

the New Mexico Supreme Court and Colorado–New Mexico Indian Court Judges Associa on.

With 14 members–7 represen ng state courts and 7 represen ng tribal courts—the

consor um’s ini al mission was broad: “to address ques ons of jurisdic on and sovereignty,

focusing at first in the areas of domes c violence, domes c rela ons and custody, child

support, child abuse and neglect, and juvenile jus ce, and perhaps expanding into other areas

of law in the future.” Expansion has definitely occurred, with domes c violence, law

enforcement, and general jurisdic onal issues among the topics that have received a en on.

August 2011 Mee ng at Jemez Pueblo. Photo on file with TLPI.


46

Two of the original goals of the New Mexico Tribal–State Judicial Consor um were “to facilitate

communica on between State and Tribal judicial systems” and “to improve awareness and

develop informa on . . . about the different judicial and legal systems in place in the State and

in the various Tribes and Pueblos.” In order to further those goals, the consor um has

conducted a series of Cross‐Court Cultural Exchanges, beginning in 2000. These exchanges,

which are typically cohosted by a tribal court and a local state court, have been well a ended

and well received and have offered an introduc on for many par cipants to tribal court

processes and related ac vi es. From these exchanges, workshops have been developed that

have focused on issues such as child welfare and cross‐jurisdic onal issues presented by federal

sex‐offender registra on requirements. The exchanges have also discussed Navajo peacemaker

jurisdic on, recogni on of judgments, and domes c violence ma ers.

Communica on and mutual educa on have led to concrete policy outcomes. For example, a

workshop on law enforcement issues resulted in the development of cross‐deputa on

agreements. The consor um has also sponsored state and tribal considera on of Project

Passport, one of the Promising Strategies discussed above (see Promising Strategy #1,

“Extending Project Passport” page 41). A er several regional mee ngs throughout the state, at

which more than 300 members of the courts and law enforcement became more familiar with

the standardized Passport Model Template First Page, 7 tribal courts decided to adopt a page

similar to the state’s protec on order template for use on their protec on orders. The

consor um also sponsors scholarships for tribal judges to a end the annual State Judicial

Conclave and the Magistrate Judges Conference.

Fairness

An important goal of the New Mexico Tribal–State Judicial Consor um has been to achieve

greater fairness in the treatment of na ve and non‐na ve defendants and vic ms in state

courts. One of the workshop topics has been ensuring na ve representa on on state court

juries. In 2006, the consor um cosponsored the annual mee ng of the Na onal Consor um on

Racial and Ethnic Fairness in the Courts, promo ng the goal of fair and impar al treatment in

the courts.


The consor um has worked to strengthen rela onships and foster communica ons between

state and tribal courts through the exchange of basic informa on about each court’s laws,

customs, and values. Educa on occurred first through the Cross‐Court Cultural Exchanges and

then through the regional mee ngs. The regional mee ngs offered fewer speakers and topics,

concentra ng instead on a single issue and small group discussions. The more focused and


47

“The consortium is a good place

to meet not only other judges,

but many important people

who can collaborate with our

courts on many issues.”

— District Judge

William J. J. Platero,

Navajo Nation

in mate se ng allowed judges, court staff, and others to convene and discuss significant issues

and challenges within the region, iden fy common concerns, and begin to cra solu ons to fit

their varying needs. Educa on on Project Passport resulted in the state adop ng a uniform first

page template for protec on orders, with some tribal courts joining the effort. The Santa Clara

Pueblo indicates that tribal members are be er protected by tribal protec on orders due to use

of the standard first page.


The New Mexico Tribal–State Judicial Consor um has improved awareness and strengthened

rela onships among the tribal and state judiciaries, producing posi ve outcomes such as

coopera ve agreements and procedures for managing mul jurisdic onal cases. For example,

the Navajo Drug Court collaborated with the Bernalillo County Metropolitan Court to hear from

treatment providers and other resources used in drug court programs. Addi onally, a workshop

on the topic of “cross‐depu za on of law enforcement officers” included the development of

agreements and training of officers represen ng the state and tribal agencies, allowing officers

to be cross‐depu zed. Annually, the tribal and state judges gather at a statewide Judicial

Conclave that addresses issues of mutual concern. The consor um assists tribal judges’

par cipa on in the Judicial Conclave by providing hotel and other expenses. Each year, a

Judicial Conclave workshop is held specifically on an issue affec ng tribal–state rela onships.

Keys to Success

Since 2006, the New Mexico Tribal–State Judicial Consor um has

benefited from formal recogni on as an ac ve commi ee by the

Supreme Court of New Mexico, with one of the jus ces serving as a

designated liaison to the consor um. It has also gained support as a

result of developments in the state that have increased the

incidence of cross‐jurisdic onal ma ers. For instance, the number

of Na ve Americans residing in New Mexico has grown, as has the

mobility of na ves and non‐na ves across jurisdic ons and the

amount of commercial ac vity on reserva ons, through tribal gaming and otherwise. As legal

ma ers arise affec ng more than one jurisdic on, state and tribal court judges have had cause

to learn more about each other’s laws and procedures.

The New Mexico Tribal–State Judicial Consor um has designed the format of its conferences

and workshops to make the tribal–state court interac ons as produc ve as possible. Instead of

moun ng large‐scale conferences in which people have few opportuni es for extended

conversa ons, personal interac on, or development of rela onships, the consor um’s


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leadership has conducted mee ngs on a more regional basis. This more localized approach has

afforded tribal and state judges greater opportuni es to meet their colleagues and other

professionals who are likely to appear in their courtrooms. They also emphasize single‐issue

and small group discussions, providing a more focused and in mate se ng in which

par cipants can iden fy common concerns and begin to cra solu ons responsive to their

par cular needs.

Providing funding for tribal courts to par cipate in the consor um has also been a key to

success. Some of those funds have come from federal grants, and some from the state supreme

court’s budget. At one point, when federal funding for tribes was reduced, tribal judges were

no longer able to a end the consor um’s regular mee ngs or other trainings or workshops.

One of the reasons that the consor um secured status as a Supreme Court Advisory Commi ee

was to enable the court’s budget to be allocated for tribal judges’ travel to consor um

mee ngs. Holding regional mee ngs and mee ngs located on tribal lands has also decreased

the costs of par cipa on, which has increased the audience of tribal and state court

par cipants for consor um programs.

For additional Tribal‐State‐Federal collaborative promising strategies,

visit the Walking on Common Ground website:

www.WalkingOnCommonGround.org

“Resources for Promoting and Facilitating Tribal‐State‐Federal Collaborations”

promising tribal–state court relations · first, these promising strategies reflect strong and...

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